Slater v Appleton

[2012] QLC 17

LAND COURT OF QUEENSLAND

CITATION:

Slater & Anor v Appleton & Anor  [2012] QLC 0017

PARTIES:

Christopher Ian Slater and Sharyn Patricia Slater
(applicants)

v.

Victor John Edward Appleton and Janet Anne Appleton
(respondents)

FILE NO:

MRA161-12, MRA172-12 and MRA173-12

DIVISION:

General Division

PROCEEDING:

Application for certain order

DELIVERED ON:

26 April 2012 [Ex Tempore]

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr PA Smith

ORDERS:

The Application is dismissed.

CATCHWORDS:

BIAS ― application for disqualification of Member on account of suggestion made to other party in earlier decision ― test for bias ― application rejected

Slater & Anor v Appleton & Anor [2012] QLC 0007
Walkden v The Council of the City of Townsville and Anor (1990) QPLR 251
Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337
CUR24 v DPP [2012] NSWCA 65

APPEARANCES:

Mr Christopher and Mrs Sharyn Slater (applicants)
Mr George Houen of Landholder Services for the respondents

1. The respondents have brought a general application seeking an order that I disqualify myself from the hearing of this matter. The grounds that were relied upon for that relief are as follows:

   “1.The respondents consider that the applicants have taken to said paragraph [41] as advice from His Honour stating a course of action which they may follow to have the compensation for their mining leases (both existing and awaiting grant) reviewed and reduced.

   2.The respondents entertain a reasonable apprehension that His Honour, having in effect advised the applicants that they could advance their cause by making the subject application, might not bring an impartial and unprejudiced mind to deciding the matters now raised in the application.

   3.This apprehension would be apparent to a reasonable person with an appropriate level of comprehension of the matters which were at issue in the determination which the applicants now seek to review.”

2. The matter came on for argument on 26 April 2012. Mr Houen has provided his written submissions in support of his application. There is also an affidavit in support and there have been response submissions provided by Mr and Mrs Slater.

3. The crucial paragraph of the decision of 24 February 2012,[1] which Mr Houen relies upon, is paragraph 41, which states as follows: 

   “For completeness I should add that, in the event that the miners at some point in the future amend their environmental authorities such that they only then hold one environmental authority with respect to the two MLA and are thus limited to a maximum disturbance at any one time of 10 ha over both MLAs combined, then in my view the provisions of s.283(B)(1) of the MRA would apply, allowing this Court to review the compensation payable with respect to both MLAs.”

   [1]     Slater & Anor v Appleton & Anor [2012] QLC 0007.

1. In Mr Houen's view, the comments in paragraph 41: [2]

   “… actually amounts to, and has had the effect of, the Court giving guidance to the miners. That is, pointing them in the direction of a course of action they hadn't previously considered by which they could initiate a review and achieve a reduction of the compensation determined in that original hearing. Your Honour's reasons also made it clear that in your view, a reduction in the disturbance area permitted under environmental authority would, as a matter of course, lead to a proportionate reduction in compensation.”

[2]     Paragraph 3 of Mr Houen’s written submissions of 26 April 2012.

1. In support of his contentions, Mr Houen has relied upon the Queensland Full Court decision of Walkden v. The Council of the City of Townsville and Anor.[3]

   [3] Reported at [1990] QPLR 251.

2. Mr Houen referred the Court specifically to page 256 of that decision in which the following tests were stated:

   “The relevant principles which emerge from those decisions are these. Firstly and most importantly, the tests to be applied is whether the parties or the public might entertain a reasonable apprehension of bias on the part of the judge. Such apprehension must, however, be that of the moderately informed observer with a full comprehension of the circumstances. The matter must be determined objectively and a mere impression of an apprehension of bias does not suffice. The answer is a matter of impression and it is one of fact and degree, the circumstances of each case being all important. The terms of a subsequent disclosure by the judge of the communication and the statement of its effect may be a relevant consideration.”

3. It is important to turn to recent authority in considering this matter. I refer firstly to the High Court decision of Ebner v The Official Trustee in Bankruptcy.[4] In that case Chief Justice Gleeson and Justices McHugh, Gummow and Hayne, in their joint decision, made the following observation:

   “Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”

[4] Reported at [2000] 205 CLR 337.

1. I also note the general principles to be applied as set out throughout the decision in Ebner. Additionally the New South Wales Court of Appeal in the decision of CUR24 v DPP,[5] a decision of Basten, Whealy and Meagher, all Justices of Appeal, on the 5th of April 2012, gave a comprehensive analysis of the tests to be applied for reasonable apprehension of bias.

   [5] Reported at [2012] NSWCA 65.

2. The test is set out at paragraphs 35, 36 and 37 of that decision and is as follows:

   “Tests for reasonable apprehension of bias

   35.The test as to apprehension of bias is not in issue. The question is whether a ‘fair-minded lay observer’ might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of a question he or she is required to decide. In applying this test, it is necessary first to identify what it is that might lead to that officer not bringing an impartial mind to a relevant question and then to assess the reasonableness of the asserted connection between that matter and the possibility of departure from impartial decision making.

   36.In this case the apprehended bias is said to arise from prejudgement. When prejudgment of an issue is relied upon ‘what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented.’ That reasonable fear must be ‘firmly established’ because it is to be expected that judicial officers may have formed views or ‘inclinations of mind’ with respect to particular subjects in the course of their professional careers.

   37.It is also to be expected that judicial officers can and should readily alter or disregard such views in light of evidence or argument.”

1. I also note the reasoning found in CUR24 as follows:[6]

   “The fair-minded bystander would be taken to appreciate that in presiding over a trial, a judge would have to address questions as to the admissibility of evidence, formulate a summing-up and determine an appropriate sentence. That observer would also appreciate that the Judge is someone whose ‘training, tradition and oath or affirmation require [that he] discard the irrelevant, the immaterial and the prejudicial.’”

   [6] See paragraph [57].

2. It is necessary to turn to the full reasoning in Slater v Appleton[7] to determine what was actually said in that decision, as opposed to what is apprehended to have been said. Firstly, Mr Houen, during submissions, made it clear that he has, and continues to hold, a different view to that of which the Court expressed, at paragraphs 33 and following, as to the effect of s.283(B)(1) of the Mineral Resources Act 1929.

   [7] [2012] QLC 0007.

3. Mr Houen confirmed that his clients have not appealed the decision, and it should be noted, the reasoning with respect to s.283(B) was specifically relied upon by Mr Houen as a reason why the compensation payable to the landholders should be over the whole of the area of the proposed mining lease, and not just that area to be disturbed.

4. Thus, the question of when a material change in circumstances would arise was squarely raised during the hearing. So too was it squarely raised during the hearing as to what the actual status of the environmental authorities was with respect to the mining leases in question.

5. Mr Houen contends that my reasoning in paragraph 41 states an intention. Certainly, the comments in paragraph 41 do state my view of the operation of s.283(B)(1), with respect to material change of circumstances. Those views are consistent with the other views expressed in the decision and are consistent with other authorities.

6. However, Mr Houen then goes further in his submissions, as I have already quoted, to assert that paragraph 41, when read in light of the other paragraphs of the decision, necessarily lead to a view that I have predetermined that applying s.283(B)(1) will lead to a reduction in disturbance permitted under the Environmental Authority and would “As a matter of course, lead to a proportionate reduction in compensation”.[8]

   [8] See respondent’s submissions dated 26 April 2012, paragraph [8].

7. I invited Mr Houen to take me to any part of the decision where those specific words are used, and he was unable to do so. All he could point to was a general flavour that he said arose from the decision and the consequence that he said followed.

8. It is always difficult as the High Court and other Courts have stated, for one to deal with allegations of apprehended bias when the person making the decision is the one against whom the apprehension of bias is alleged. However, it is my duty to determine the application, it having been properly brought before me. It is clear, in my view, that an appropriate legal reading of paragraph 41 of my decision of 24 February 2012, merely shows that an amendment to an environmental authority to change the area of mining is apt to cause the triggering of s.283(B)(1) “allowing this Court to review the compensation payable with respect to both MLAs.”[9]

   [9] See [2012] QLC 007 at paragraph [41].

9. Specifically, either the landowner or the miner, as allowed by the provision could bring that application. I have not heard the application for review, and when that application for review is heard, I have no preconceptions at all as to whether or not the compensation should actually be reduced. I can see some very valid legal arguments that may be made, particularly in the facts of the case at hand, as to why the compensation should not be reduced, but it would be improper for me to go further and express those views openly at this stage. That will be a matter for Mr Houen or whoever appears for the Appletons, to prosecute themselves at the determination of this matter.

10. The overarching principle I must fall back to is that expressed by the High Court in Ebner. I do not choose to hear this matter, it is a matter that I am required to hear falling within my area. In my view, I have not prejudged the outcome of any application of s.283(B)(1).

11. Mr Houen holds his own view as to when s.283(B)(1) is triggered, but that is the view he holds, which is not supported by any judicial authority, and when given the opportunity to challenge a judicial finding in that regard, Mr Houen and his clients have chosen not to do so. In the circumstances of this case, I believe that the interest of justice are that I should not disqualify myself from hearing the matter, and I will accordingly dismiss the application.

Order
           The Application is dismissed.

P A SMITH

MEMBER OF THE LAND COURT